Gujarat High Court
Shantilal Suvalal Bhat vs State Of Gujarat & 2 on 28 April, 2014
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/5502/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 5502 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
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SHANTILAL SUVALAL BHAT....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR ANAND L SHARMA, ADVOCATE for the Petitioner(s) No. 1
Mr.D.M.Devnani,learned ASST.GOVERNMENT PLEADER for the
Respondents
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
Date : 28/04/2014
Page 1 of 8
C/SCA/5502/2014 JUDGMENT
ORAL JUDGMENT
1. Learned advocate for the petitioner has moved a draft amendment. The same is granted and may be carried out during the course of the day.
2. Rule. D.M.Devnani, learned Assistant Government Pleader waives service of notice of Rule for the respondents.
3. On the facts and in the circumstances of the case and with the consent of learned counsel for the respective parties, the petition is being heard and decided finally.
4. By preferring this petition under Article 226 of the Constitution of India, the petitioner has, inter alia, challenged the communication dated 1-10- 2010,whereby the services of the petitioner, as Junior Clerk, have been terminated on the ground that he has failed to clear the Pre-Service Training examination in three chances, plus two additional chances.
5. It is the case of the petitioner that his father was working under the respondent-Department, and died Page 2 of 8 C/SCA/5502/2014 JUDGMENT while in harness. The petitioner made an application for grant of appointment on compassionate grounds. By an order dated 4-9-2003, the petitioner was appointed as Junior Clerk, in the office of respondent No.2. Initially there was no service condition requiring the passing of the Pre-Service Training Examination. However, by an order dated 2-3-2005 the petitioner was informed that a correction has been made in condition No.2 of the appointment order dated 4-9-2003, stipulating that the petitioner is now required to pass the Pre-Service Training examination within three attempts. The petitioner failed to pass the said examination within the requisite three chances. Further the petitioner was unsuccessful in doing so in the two additional chances, as well. Therefore, vide the impugned communication dated 1-10-2010,the services of the petitioner came to be terminated.
6. Mr.Anand L.Sharma, learned advocate for the petitioner has submitted that the petitioner was granted appointment on compassionate grounds as the family was in a poor financial condition and in great need of employment. The petitioner was unable to pass the Pre-Service Training Examination within the three Page 3 of 8 C/SCA/5502/2014 JUDGMENT chances that were given to him, as well as two additional chances. The petitioner was discharging his duties satisfactorily and there was no complaint against him. The burden of maintaining the entire family is also on the petitioner. It is further submitted that looking to the overall circumstances and the fact that the petitioner was initially appointed on compassionate grounds, the respondents may be directed to take him back in service on a Class IV post, where there is no necessity of passing the Pre-Service Training Examination.
7. In support of the above submissions, learned advocate for the petitioner has placed reliance upon a judgment of the Supreme Court in the case of Brijesh Vipin Chandra Shah v. State of Gujarat & Ors., reported in 2013(2) S.L.J. 7. It is submitted by the learned advocate for the petitioner, that the case of the petitioner is covered by the said judgment, therefore, directions, in accordance with the observations of the Supreme Court, may be issued.
8. Mr.D.M.Devnani, learned Assistant Government Pleader, submits that in view of the judgment of the Supreme Court, this Court may pass appropriate orders. Page 4 of 8
C/SCA/5502/2014 JUDGMENT 9. In Brijesh Vipin Chandra Shah v. State of
Gujarat & Ors. (supra), the Supreme Court was dealing with a case wherein the appellant before it was appointed on compassionate grounds as a Junior Clerk as his father had died while in harness. In that case as well, the appellant could not clear the Pre-Service Training Examination within three chances and was given an additional chance but was unable to pass the examination in that chance, as well. This led to the termination of the services of the appellant therein. After having considered the entire matter, the Supreme Court held as below:
"7. At this stage, learned counsel for the appellant submits that having worked for about 12 years, the appellant cannot now be rendered jobless. Even though he is not entitled to a Class III post, he would be certainly entitled to a Class IV post on compassionate grounds. He, therefore, prays that the appellant may be permitted to continue on Class IV post. However, this request is vehemently opposed by the learned counsel for the respondents and he submits that once the appellant had been appointed on Class III post, he cannot be considered for regularising his service on a Class IV post.Page 5 of 8
C/SCA/5502/2014 JUDGMENT
8. We are of the considered opinion that the stand taken by the respondents is unnecessarily harsh. It must be remembered that the appellant was initially appointed on compassionate grounds as his father had died while he was in service. Compassionate appointment is made by relaxation of the normal service rules for providing immediate financial assistance to the family of the deceased who dies in harness. It is unfortunate that the appellant was unable to pass the in-service examination so as to enable him to continue on a Class III post. But that ought not to result in depriving him of service altogether.
9. In view of the above, we allow this appeal and direct the respondents to appoint the appellant on a Class IV post. The appointment of the appellant on a Class IV post shall be from the date he was initially appointed on Class III post. His seniority shall be reckoned from the date of initial appointment. However, the appellant shall not be entitled to any back-wages since he has not worked, on any of the posts, after the date of termination of his services."
(emphasis supplied)
10. The facts of the case before the Supreme Court are similar to the facts obtaining in the present Page 6 of 8 C/SCA/5502/2014 JUDGMENT case, therefore, the principles of law enunciated by the Supreme Court in the above-quoted judgment would be applicable to the case of the petitioner. The petitioner herein has worked approximately for six years as a Junior Clerk and his services have been terminated only because he could not clear the Pre- Service Training Examination in three chances, plus two additional chances. Considering that the appointment of the petitioner was on compassionate grounds and in view of the observations made by the Supreme Court in the case of Brijesh Vipin Chandra Shah v. State of Gujarat & Ors. (supra), similar directions can be issued to the respondents.
11. In view of the above, the petition is partly- allowed. The respondents shall consider the petitioner for appointment to a Class-IV post. The said appointment on the Class-IV post shall be considered to have been made from the initial date when the petitioner was appointed on a Class-III post and his service seniority be reckoned, accordingly. It is, however, made clear that the petitioner shall not be entitled to back-wages, as he has not worked after the date of the termination of his services. Page 7 of 8
C/SCA/5502/2014 JUDGMENT
12. Rule is made absolute to the above extent. There shall be no orders as to costs.
(SMT. ABHILASHA KUMARI, J.) ARG Page 8 of 8